On May 26, 2020, the U.S. Court of Appeals for the Ninth Circuit decided three significant environmental law cases. Two of these cases involved whether global warming tort cases could be brought in California state courts on, for example, a public nuisance claim, and whether the defendant energy companies had the right to have them removed to the federal courts. Continue Reading ›
Until COVID-19 officially took hold in the U.S. in March of 2020, the U.S. real estate market was active, even robust. Starting in March, however, the possible scope of the pandemic and the sudden imposition of stay-at-home orders resulted in deal volume falling precipitously—with sales, leasing and lending transactions being put on temporary “wait and see” pause or terminated altogether.
The IRS issues anticipated guidance providing relief to developers facing delays related to COVID-19. In the recent alert, “IRS Extends Continuity Safe Harbor for Renewable Energy Projects,” colleague Jorge Medina, discusses how the guidance also provides some clarity on the impact of supply chain disruptions on equipment orders placed later in 2019, primarily associated with solar and fuel cell companies, by addressing the application of the “3½ month rule” in light of COVID-19 and providing a new safe harbor.
Here are a few interesting new rulings from the federal appellate courts.
COURT ORDERS
Like a Good Neighbor …? — State of Maryland v. EPA
On May 19, 2020, the D.C. Circuit decided a Clean Air Act case involving the use of the “Good Neighbor Provision” of the Act, which is triggered when one state has a complaint about emissions generated in a neighboring upwind state that settle in the downwind state. Here, Maryland and Delaware filed petitions with EPA seeking relief from the impact of emissions from coal-fired power plants that allegedly affect their states’ air quality. EPA largely denied relief, and the court largely upheld the agency’s use and interpretation of the Good Neighbor Provision. The opinion is valuable because of its clear exposition of this complicated policy.
Over the past few months, construction projects in most states have carried on because construction was deemed essential and projects were exempted from government orders that closed businesses. In the jurisdictions that halted construction operations, state and local authorities are now easing those restrictions and allowing construction to resume. In “Safety Measures for Construction Projects During the COVID-19 Pandemic,” colleagues Laura Bourgeois LoBue and Jose L. Lua-Valencia discuss just how different construction sites will be than they were a few months ago under this new normal.
A recent court order issued as part of an ongoing litigation involving a Manhattan hotel held that a mezzanine lender may proceed with a UCC foreclosure sale of the mezzanine loan collateral despite N.Y.E.O. 202.8, which prevents creditors from initiating judicial foreclosures. In “Distressed Real Estate During COVID-19: New York State Court Order Finds UCC Foreclosures Are Not Suspended by New York E.O. 202.8.,” colleague Caroline A. Harcourt addresses the court’s denial of injunctive relief to the UCC foreclosure and determination that damages were an adequate remedy may have significant effects even after the COVID-19 pandemic, and also to mezzanine borrowers considering their defenses to UCC foreclosure proceedings.
Please join our panel of current and former in-house counsel—with experience spanning a number of industries—as they discuss the issues and opportunities they faced in the course of their own professional journeys, and the strategies that helped them along the way.
Speakers:
Peg Henry, Deputy General Counsel, Stifel Financial
Nicole Islinger, Partner, Pillsbury
Jorge Medina, Partner, Pillsbury
Seth Weissman, Chief Legal Officer, Marqeta, Inc
Moderator:
Augusto Lima, Partner, Pillsbury
This week, the Cybersecurity & Infrastructure Security Agency (CISA) issued Version 3.1 of its Guidance on the Essential Critical Infrastructure Workforce. For the most part, CISA’s Guidance 3.1 did not change from Version 3.0 as it relates to construction. However, CISA added a few construction-related services to “Essential Critical Infrastructure”:
For a more in-depth look at the CISA Guidance related to construction see Pillsbury alert Commercial Construction during COVID-19: CISA Expands its Guidance.
On May 13, 2020, proposed California Senate Bill No. 939 was amended to not only prohibit landlords from evicting commercial tenants during the pendency of the COVID-19 state of emergency, but to extend protections to certain qualifying tenants permitting express rent reduction negotiation rights and lease termination rights. In “Proposed California Bill Would Ban Commercial Evictions During the State of Emergency and Grant Lease Termination Rights to Qualifying Tenants,” special counsel Carmela D. Nicholas explores how California Senate Bill 939 goes beyond the COVID-19 eviction moratorium imposed in most cities and counties across the state.
The Procurement Integrity Act (PIA) governs disclosing or obtaining procurement information, engaging in employment discussions with government officials, and the payment and receipt of compensation to a former government official. In “New Procurement Integrity Act Decision Reminds Contractors of Its Scope and the Potential Remedies for a Violation,” colleagues John E. Jensen, Alex D. Tomaszczuk, Robert Starling discuss the question of whether an offeror has knowingly obtained “contractor bid or proposal information or source selection information” during a procurement, in violation of the PIA, is very fact-specific.
